Moving at a Glacial Pace: What Can State Attorneys General Do About SEC Inattention to Nondisclosure of Financially Material Risks Arising from Climate Change?

By: Nina Hart

In recent years, two certainties have created a mass of uncertainty for public companies. First, companies must disclose material financial information in their annual statements, known as 10-K reports, to the Securities & Exchange Commission (“SEC”). Second, climate change poses financial risks to the way many companies operate. Together, these principles have generated significant uncertainty within the regulatory and law enforcement arenas. Specifically, companies and law enforcement officials are uncertain about what risks stemming from climate change must be disclosed in 10-K reports, and how that information should be presented.

The actor primarily responsible for clarifying disclosure requirements is the SEC. This Note will argue that the SEC’s most recent attempt to address this uncertainty-a 2010 interpretive release-is inadequate, and that the SEC should issue additional guidance. As the SEC has not been active on this issue in the past four years despite promising further action on climate change disclosure, this Note will then argue that state attorneys general, particularly the New York Attorney General, should attempt to address this inaction through use of state securities laws and other advocacy tools.

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